Serafini v D'Rozario - [2012] WADC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SERAFINI -v- D'ROZARIO [2012] WADC 135

CORAM: KEEN DCJ

HEARD: 2 AUGUST 2012

DELIVERED : 12 SEPTEMBER 2012

FILE NO/S: CIV 2230 of 2010

BETWEEN: JOSHUA JOHN SERAFINI
Plaintiff
AND
NATASHA MARIE D'ROZARIO
Defendant

Catchwords:

Negligence - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's case dismissed

Representation:

Counsel:

Plaintiff: Mr T Offer
Defendant: Mr T Mason

Solicitors:

Plaintiff: Separovic Injury Lawyers
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Knight v Maclean [2002] NSWCA 314
Wensick v Marshall [2010] WASCA 117
Wyong Shire Council v Shirt (1980) 146 CLR 40

KEEN DCJ: The plaintiff claims damages for personal injuries sustained by him in a motor vehicle accident which occurred on 28 February 2009.
The quantum of the plaintiff's claim has been agreed and the only issue before the court concerns liability.
The accident giving rise to the claim occurred sometime late in the evening of Saturday, 28 February 2009. At the material time the plaintiff was a pedestrian. The defendant was the driver of a motor vehicle.
The area in which the accident occurred is the junction of Roe Street and Beaufort Street, Northbridge. The junction is depicted in the diagram in exhibit 2.1. That diagram shows that Roe Street proceeds in an east/west direction and Beaufort Street in a north/south direction. Roe Street, in an easterly direction heading towards Beaufort Street, comprises two lanes. At the junction with Beaufort Street there is a filter lane to the left for vehicles leaving Roe Street to enter Beaufort Street to travel north. The junction at that point is controlled by give way signs and a dotted white line that extends from the footpath at the junction of Roe Street and Beaufort Street across to a traffic island situate to the west side of the filter lane and to the north side of the continuing left‑hand lane in Roe Street.
It was in this area of the filter lane that the motor vehicle driven by the defendant and the plaintiff came into collision with the right foot or ankle of the plaintiff coming under the left rear wheel of the car driven by the defendant causing a fracture of the plaintiff's right ankle.

The evidence

The evidence in this case was relatively short.
In his evidence the plaintiff said that on the day in question he had been to a party in Mount Lawley. He left that party to go to another. He obtained a lift into Northbridge. He said that he got out of the car at the corner of Roe and Beaufort Streets.
By reference to a photograph of the junction (exhibit 1) the plaintiff demonstrated the position that he was standing on the corner. From the pavement there is a ramp or slope leading to the roadway just before the give way sign at the junction with Beaufort Street. He indicated that he was standing on that ramp. It was his intention to cross to the small traffic island shown to the right in that photograph.
The plaintiff said that as he stood there he 'looked for cars coming and just crossed'. In answer to the question, what did he do; he said:
I looked – it would be right and then I saw a car coming and I took a step out into the middle of the street – well – and then I realised the car had changed lanes and it was coming – coming at me. I tried to step back and I got one foot on the kerb but the other foot was on the road and that's the one that got hit.
He described the vehicle that he saw as a light‑coloured car. He was asked how far away it was when he saw it and he replied 'it was like to – it was there. I couldn't get out of the way quick enough …'. He was again asked how far away it was when he first saw it and he replied 'just like right there. It was like on top of my foot sort of thing so …'. He was asked if that was the first time he saw it and he replied 'yeah'.
In relation to the stepping into the road he said:
I was like a good step out and yeah, I jumped – tried to step back and it was just too – too late and then the car – it was going really quickly and just went round the corner and you know that was it .
The questioning continued:
When you first saw this vehicle, was it – what part of the vehicle were you looking at? – The side of the car. Where – yeah, like – well, the whole thing. It was sort of there so …
He was then asked whether any of the motor vehicle had gone passed him at the time he first saw it and in a somewhat non‑responsive answer he said:
Were there cars – yeah, there were about one or two cars went passed as I waved to my friend goodbye.
He then went on to say:
And then, you know, I looked – looked to see if it was safe, stepped out, saw a car coming and stepped back as quickly as I could.
He then said:
It just happened so quick. Like, the car came and before I know it, it was on top of me and I was – I hit the ground.
He was asked where he was in relation to the car at the time when he first saw it and before stepping back. He replied 'in front of it'. When asked how far in front of it he was when he first saw it he said 'like, probably in the middle – in the middle of it'. It was put to him that he first observed the car when it was halfway passed him and he replied 'yeah'.
He said that the vehicle did not stop at the intersection, that is, it did not stop at the give way sign.
He was asked how long he had been standing on the pavement before he stepped out onto the road and he said 'maybe three or four cars. I couldn't tell you how many exactly but I'd say three or four cars'. Later he said these cars were going in the same direction and that he had been standing there about a minute.
Alan Moiler had gone to the same party with the plaintiff but had left independently and had caught a taxi to go to the Court Hotel in Beaufort Street. He said that he was sitting in the rear left‑hand passenger seat of the taxi.
The route taken by the taxi took him along Roe Street. He said he was in a position to observe vehicles in front as they approached the corner of Roe and Beaufort streets. He described a white Commodore sedan, a blue hatchback and said there may have been another vehicle.
He was asked what he observed as they approached the corner. He said:
The main thing I noticed is that I don't think anyone slowed down going round the corner, including the taxi I was in, because we came down and there was no brake. Just everyone went straight around the corner.
He said that as he went round the corner
I was looking out the left and I saw Josh sort of – sort of halfway between sitting and lying on the ground. Well, not on the ground. He was actually back so you have the kerb and he was just back a little bit from the kerb.
He said he was on the footpath.
He caused the taxi to stop and got out and went up to the plaintiff. The plaintiff told him he was fine and to leave and he did. At that stage there was no‑one else with the plaintiff.
Under cross‑examination Mr Moiler said that he had not seen the plaintiff standing on the corner. He said 'no, we had passed that point'. He said he had not seen what had happened to the plaintiff – a car hitting him or anything like that. He did not know what car was involved.
The defendant was called to give evidence.
She said that she had gone to a restaurant with her husband that evening in Roe Street. They left at about 10:30 pm. She was driving her husband's Holden Senator (a motor vehicle built on the same platform as a Holden Commodore – according to her husband). She described it as champagne colour which under cross‑examination she agreed was a light colour. Her husband was in the front passenger seat.
She said that she came up Roe Street to Beaufort Street. She intended to turn left into Beaufort Street.
When asked about the traffic she said it was a busy Saturday night and there was a lot of traffic. She said there were cars in front of her as she headed up Roe Street. She said there was a give way sign 'so you have to slow down cos there's traffic … heading in the direction of Beaufort Street'.
She said the weather was fine and clear.
She said as she was approaching Beaufort Street there are two lanes of traffic and she was in the left lane.
By reference to exhibit 1, the photograph of the junction, she described what happened as she approached the intersection. She said:
There was traffic in front of me, so there were cars in front of me, so as I was coming up Roe Street I had to slow down. As I was slowing down I saw a man on the - passenger [sic] on the - man on the side of the road, so I slowly moved towards the give way sign, checked for the traffic, make sure it was clear and then I proceeded to turn left on to Beaufort Street.
The person that she saw on the side of the road was a male and he was stationary on the footpath. Under cross‑examination she said that he was standing further back from the position that the plaintiff had indicated on exhibit 1 and more towards where the building is shown to the left.
She said that the man was looking in the direction of her car.
She said that she had to slow down because of the traffic in front of her and the give way sign and to make sure there was no oncoming traffic before she turned left. She said she stopped at the give way sign. At that stage she had passed the person who she had seen and he was behind her.
She was then asked what happened and she said:
Well once the traffic was clear on Beaufort Street I slowly took off and as I took off I heard this big thump at the back of the car and my husband said 'What was that'.
She turned into Beaufort Street, slowed and parked the car. She did not stop immediately she heard the thump because there was traffic behind her as well and she had to clear the give way sign.
Her husband got out of the car and went back to the junction. He then returned to their car at some stage after which she went down to the corner.
Ultimately the plaintiff was taken away in an ambulance.
The defendant produced as exhibit 2.1 a sketch of the area. It was accepted by counsel for the plaintiff that the sketch accurately depicts the area in question. That sketch has drawn on it the shape of a motor vehicle in the filter lane from Roe Street to Beaufort Street. She said that is where the vehicle was when she heard the bump. The sketch also shows the position of a pedestrian on the pavement and she confirmed that that is where he was when she saw him.
The defendant was cross‑examined about the person she had seen on the footpath. She said that he was facing the traffic on Roe Street. He was stationary and she passed him.
Having placed the pedestrian further back from the kerb it was put to the defendant that she did not know which way he was looking. She replied 'I can't recall'. It was put to her that she could not recall whether he was looking at traffic and she replied 'no'. She was then asked whether she could recall whether he was looking at traffic to which she replied, 'Well, he was looking in that direction'. She expanded on that by saying 'in my direction, like, going up Roe Street'. She was unable to say whether he was looking at her but that he was facing that way.
She said that she thought that the person would wait until cars had gone passed – wait until he could cross the road.
It was put to her that she assumed that he was going to cross the road and she replied, 'Well, not at that point, no, cos there was traffic'.
She did not make any assumptions about what he was going to do but proceeded to the give way sign and came to a halt. Not having made any assumptions about what he was going to do, it was put to her that she did not alter her driving in any way to guard against what he might do and she replied, 'I was already at a stationary standpoint'.
The defendant said that as she came on to this slipway or filter lane she was looking to her left because that is the direction she was turning. She said that there was traffic coming, by which I understand her to mean coming from Beaufort Street to her right.
It was put to her that as she entered that lane she was looking to the right and she agreed. It was then put to her that she had ceased to look at the pedestrian when she moved into that lane which she denied. She said it was only when she came to a halt at the give way sign that she looked right. However later she agreed that she had looked right as she entered that filter lane.
The defendant was then asked a series of questions by reference to exhibit 2.1. A further copy of that document, which became exhibit 2.2, was produced to the defendant upon which was drawn by way of a dotted line an imaginary extension of the north/south wall of the building at the junction. That imaginary extension of the wall extended down into Roe Street crossing the pavement and the road at approximately the point where the curve of the filter lane commences.
By reference to that plan she said that by the time she reached that point, where the imaginary dotted line crossed Roe Street, there was traffic in front of her. That traffic proceeded through after stopping at the give way sign because there was traffic coming on from Beaufort Street. She said that she was slowly going up to the give way sign and saw the man standing on the pavement - she had an awareness of him.
At the time that she had reached that imaginary dotted line there were no more vehicles in front of her but she had to stop at the intersection or the give way sign.
It was as she passed through the intersection that she heard the bump. She said that she had been stopped at the intersection for perhaps 10 seconds but she was not sure.
She agreed that when she was stationary at the give way sign the position of the plaintiff was such that he was immediately adjacent to her vehicle.
Under re‑examination she confirmed that she looked to see what traffic there was on Beaufort Street coming from the right as she got to and stopped at the give way sign.
Dai Phuoc Du is the plaintiff's husband.
He also said that the traffic was fairly busy, it being a Saturday night.
He said that when their vehicle was approaching the intersection there were cars on Beaufort Street and they had to stop. He said there was a car or two in front of them so it was really slow.
It was there that he heard the bump at the back of the car. He said that they had been stationary at the give way sign.
He said that he remembered a pedestrian on the footpath. He described a person by reference to exhibit 1 as being further up Beaufort Street. It appears to be acknowledged by the defence that it is unlikely to have been the plaintiff.
He said that they were stopped for a good 20 seconds waiting for traffic from Beaufort Street to clear before they were able to move.
After hearing the bump he said that they stopped about 25 to 30 m up Beaufort Street and he went back to where the plaintiff was now on the pavement. He said no‑one else was there at that time. He said to the plaintiff 'I think you walked into our car'. He did not recall any response.
Under cross‑examination he confirmed that there was no‑one else with the plaintiff when he was there. It took about 30 seconds from the time he heard the bump to get back to see the plaintiff.
He was then questioned as follows:
Can I suggest to you that as you approached the intersection of Roe and Beaufort Street, there were no vehicles impeding your progress into Beaufort Street? – Well, there was a couple before us.
I'm suggesting that there were not; would you disagree with that proposition? – I disagree, yeah.
And that there was no traffic coming from your right to stop you from directly entering the intersection with Beaufort Street? – So I'd disagree; there was.
It was put to him that it was only after he had heard the bump that his wife started to move off. He said it was probably simultaneously. When he heard the bang he said to his wife 'I think you've hit someone'.

The pleaded case

The plaintiff pleaded that the defendant was negligent in that she:
4.1failed to keep a proper lookout for other road-users including pedestrians adequately or at all;
4.2drove at an excessive speed in the circumstances;
4.3failed to swerve, steer or otherwise to avoid collision with the plaintiff;
4.4failed to apply her brakes timeously or at all;
4.5failed to indicate her intention of travel;
4.6failed to give way to the plaintiff.

Plaintiff's case

The plaintiff's case is that before attempting to cross the road he looked to his right, saw there were some cars coming and made the decision that he could proceed safely. He took a step into the road, had both feet on the road and saw the car coming. He took one step back but the other foot was run over by the vehicle driven by the defendant.
Counsel for the plaintiff said that the vehicle must have been approaching from the right and must have been in close proximity.
It was argued that the plaintiff's version of events should be accepted as it is highly unlikely he would have failed to notice a car stopped immediately in front of him. It is said that the defendant at no time stopped at the give way sign but came around the corner and kept going.
The plaintiff argued that the defendant's case that she came to a complete stop would have required the plaintiff to have walked into the side of a stationary vehicle when it had been present in front of him, on the defendant's husband's evidence, for up to 20 or 30 seconds.
The plaintiff says that the likelihood is that the defendant was more concerned about entering into Beaufort Street and making sure that the way to her right was clear and she failed to see the plaintiff step out onto the roadway. The defendant took no steps to avoid the collision and her action or inaction resulted in the collision.
The plaintiff says that all of the particulars of negligence in the statement of claim save for particular 4.5, have been made out.

Defendant's case

The defence case is that on the plaintiff's own evidence he walked into the side of the vehicle driven by the defendant as she was moving from the give way line at the intersection. By then he was behind her line of vision.
The defence poses the question as to what the defendant should have done that she did not do. It is said that she did not act in any way as alleged in the particulars of negligence.
The defence says that there was no evidence that the plaintiff showed any particular intention to cross the road in the sense of being actually on the edge of the footpath as the vehicle approached.
The defence case is that the defendant had stopped at the give way sign and as the traffic cleared from the right and she commenced to move forward the plaintiff stepped into the road and his foot was run over by the rear wheel of the vehicle. There was no negligence on the part of the defendant.

Legal principles

In deciding whether or not there has been a breach of a duty of care the court should determine what a reasonable person would do by way of response to the relevant risk which calls for the consideration of the magnitude of the risk, degree of probability of its occurrence, together with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have: Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 ‑ 48.
Failure to eliminate risk that is reasonably foreseeable and reasonably preventable does not establish breach: see Wensick v Marshall [2010] WASCA 117 and cases cited therein at [24].
The question is what a reasonable driver would in the circumstances do by way of response to a foreseeable risk. What is a reasonable response depends on all the circumstances: Wensick[25]. In relation to pedestrians that risk is that they might step from the pavement on to the roadway. Such a risk is not far‑fetched or fanciful.
A driver must pay reasonable attention to all that is happening on and near the roadway that may present a source of danger. The exercise of reasonable care requires a driver to control the speed and direction of his vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events. However it is clear that the exercise of reasonable care does not require a driver to drive in such a way as to be in a position at all times to anticipate anything that a pedestrian or other motorist might do, or be in a position to reduce the speed of the vehicle to a level which will avoid any risk of collision: Wensick [53], [54].

The standard of reasonable care, whilst being a high standard, is not to be assessed by the wisdom of hindsight. The question is whether the plaintiff has proved that the defendant has not acted in accordance with reasonable care. The liability of a driver is not such as to require him to slow down to a speed where he could stop in any conceivable circumstances and avoid an accident: Knight v Maclean [2002] NSWCA 314 [66], [67].
It was said in Knight's case:
The trial judge's conclusion of liability in this case rested on the proposition that the defendant was obliged to 'drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue'. That would have called for a very low speed indeed. Indeed, if the defendant was obliged to drive in anticipation of the emergence of pedestrians like the plaintiff at a fast walk, he would also have been obliged to drive in anticipation of pedestrians emerging at a run, which would call for a slower speed still. Speeds of such slowness are incompatible with the reasonable use by motorists of Parramatta Road, which is a substantial highway …
Parramatta Road may well be a very busy road. The same may be said of streets such as Roe Street particularly on a busy Saturday night.

Findings of fact

Certain facts are not in dispute. They may be summarised as follows:
1.The plaintiff was standing on the pavement at the corner of Roe and Beaufort Streets;
2.The defendant was driving along Roe Street in an easterly direction;
3.She turned left into the filter lane to turn left into Beaufort Street;
4.The plaintiff stepped into the road and his right foot/ankle was run over by the left rear wheel of the motor vehicle driven by the defendant causing injury to his ankle;
5.The weather was fine with good lighting;
6.The scene and the intersection are as depicted on exhibit 2.1.
I make the following findings of fact.
I am satisfied that the defendant drove towards the junction at a speed which was reasonable in the circumstances.
Whilst the plaintiff says that the defendant was travelling quickly, I do not accept that to be the case. I accept the evidence of the defendant and her husband that this was a busy Saturday night with other vehicles around and in the vicinity. That is supported, at least to the extent that there were other motor vehicles around, by Mr Moiler and by the plaintiff himself.
There was no other evidence of speed – all Mr Moiler could offer was that the motor vehicles going around the corner (even if including the defendant's vehicle) did not slow or stop. There was no evidence from him as to what he meant by not slowing or from what speed.
I accept, on the balance of probability, given the area and the time of night, the defendant's evidence that she was in traffic at the time.
I find that the plaintiff did not, after looking for traffic, step into the road before the vehicle driven by the defendant came on the scene. He had seen other vehicles and had waited. He did not condescend to detail in his evidence as to where the vehicle driven by the defendant was in relation to those other vehicles or why, having 'looked to see if it was safe', he stepped out into the road.
In any event, on his evidence, he first saw the motor vehicle when it was halfway passed him, i.e. he was alongside it.
I find that the defendant had entered the filter lane before the plaintiff stepped off the kerb and onto the road.
The exhibits would suggest that the filter lane itself is relatively short and probably not much more than the length of a car. That is consistent with the plaintiff's evidence that the car was, essentially, alongside him.
Both counsel agreed that the allegation that the defendant had failed to indicate her intention of travel fell away due to the complete lack of any evidence about the use of indicators or otherwise.
I am satisfied that on approaching and entering the filter lane the defendant was keeping a proper lookout. She had seen the plaintiff on the pavement, albeit further back from the kerb than the plaintiff says he was. Whilst there was cross‑examination about how much alcohol the plaintiff had consumed at the party, there was no evidence that he was drunk or showed any signs of inebriation whilst on the footpath. There is no allegation or pleading of any relevant lack of sobriety.
In my view the defendant was not obliged to keep an eye on the plaintiff at all times from the time she first saw him to the time that she had passed him. She had other obligations, that is to say, to be aware of all that was going on around her. There was no evidence about the state of the plaintiff that should have caused any concern to the defendant which would require her to moderate her driving further or, having seen the plaintiff, distract her from other events going on around her on the highway. As I have already noted, she was, in my view, in all probability, travelling at a reasonable speed and in view of the findings that I make next, slowing to an ultimate stop at the give way sign.
In any event, if the motor vehicle she was driving was directly alongside the plaintiff when he first saw it, that is before it had run over his foot, it begs the question of what effect any slowing of the motor vehicle would have had.
I accept the defendant's evidence that, having entered the filter lane, she stopped at the give way sign to check for traffic to her right on Beaufort Street. I do not accept the evidence of Mr Moiler on this issue. His evidence was vague as one might expect it to be from a person sitting in the rear passenger seat of a taxi. Whilst an inference is capable of being drawn, that the white Commodore that he saw was the motor vehicle driven by the defendant, it is not compelling. Mr Moiler did not say where the Commodore was in relation to the taxi and the other cars he referred to.
Mr Moiler only saw the plaintiff as the taxi in which he was travelling went around the corner. By this time the plaintiff was sitting on the pavement. He did not see the plaintiff being struck. He could not and did not give any evidence as to how long the plaintiff had been on the pavement in this position.
Given my finding that the defendant stopped at the give way sign, I do not accept Mr Moiler's evidence that the motor vehicles in front of his taxi did not stop. Alternatively, if these vehicles did not stop then I am not satisfied that those vehicles included the motor vehicle driven by the defendant. It will be remembered that he described a white Commodore whereas the motor vehicle driven by the defendant was champagne in colour, albeit light in colour. This position is further supported by the findings that I make next in relation to Mr Moiler not being able to recall seeing the defendant's husband at the scene which suggests that Mr Moiler came on the scene later after the accident than his evidence would otherwise suggest.
As to Mr Moiler's arrival at the scene and that of the defendant's husband, I am unable, on the evidence, to account for them not recalling seeing each other. If Mr Moiler was at the scene very shortly after the collision then so was the defendant's husband, on his evidence, which I accept. That evidence was that after hearing the thump at the rear of the car his wife drove around the corner and stopped. He then got out of the car and came back to where the plaintiff was.
For Mr Moiler to have followed around the corner, stopped his taxi and alighted and got to the plaintiff, as he said, it would have taken some time. Even if he was then given a very quick brush off by the plaintiff, as he suggests, it is hard to imagine why he and the defendant's husband did not meet on the pavement where the plaintiff was laying. One possible explanation may be that Mr Moiler came on the scene and left again during the short period that the defendant's husband left the plaintiff to return to his car where the defendant had remained.
Accordingly, I am of the view that the evidence of Mr Moiler does not assist the plaintiff.
I accept the evidence of the defendant that, having stopped at the give way sign, she felt the thump at the rear of the car. As her husband said, the pulling away and the thump were simultaneous. Clearly there must have been some forward motion for the accident to have occurred.
It is the plaintiff who bears the burden of proving negligence in this case and I am not satisfied that he has done so in respect of the pleaded allegations. His evidence generally was not convincing. He was vague about events and self‑contradictory in many respects particularly as to stepping in front of the vehicle, on the one hand, and not seeing the vehicle until it was halfway passed him, on the other.
As will be apparent from my findings above, I am not satisfied that the plaintiff has proved that the defendant failed to keep a proper lookout or that she drove at an excessive speed in the circumstances.
Further, given my findings I have not been satisfied that it was incumbent upon the defendant to swerve, steer or otherwise avoid the collision with the plaintiff or ought to have applied her the brakes in time or at all.
With regards to the allegation that she failed to give way to the plaintiff, the evidence adduced by the plaintiff has not satisfied me that she was obliged to do so in the circumstances as I have found them to be. There is no evidence that the plaintiff had a right of way by reason of being on a crosswalk or had the benefit of any walk sign in his favour.
Counsel for the plaintiff's argument that the plaintiff's version should be accepted as it is highly unlikely he would have failed to notice the car stopped immediately in front of him and walk into the side of a stationary vehicle that had been present in front of him for up to 20 to 30 seconds can be dealt with on the basis that the plaintiff's actions are explicable on the basis of him intending to step off the pavement to cross the road either behind this motor vehicle or between this motor vehicle and another but misjudging his position and the proximity of the motor vehicle and his general lack of attention to his surroundings.
At the time the defendant could not be expected to guard against what may be happening behind her as, having stopped for the traffic on her right, she was entitled to proceed to drive forward when it was safe to do so.
Even if I were wrong on those findings of fact and the defendant had not reached and stopped at the give way sign when the accident occurred, the plaintiff has still not satisfied the burden of proof in this matter.
On his evidence he stepped off the kerb when the motor vehicle driven by the defendant was in very close proximity. The defendant was keeping a lookout and had seen the plaintiff and there was nothing to suggest that he would step off the pavement in front of her in such close proximity and that he would immediately have to step back.
That being the case, the defendant was not obliged to continue to watch the plaintiff but was obliged to familiarise herself with all that was going on about her, travelling, as I have noted, at a reasonable speed.
It is clear that the bulk of the motor vehicle had passed the plaintiff when the collision occurred. That being so, he either stepped in front of the motor vehicle when it was very close or stepped off the pavement and into the car as the defendant was passing.
In either scenario the magnitude of the risk of the plaintiff stepping off the pavement and into the path of the car did not require the defendant to take any alleviating action. On such a road, or in such traffic, it would have imposed an unreasonable responsibility on the defendant towards the plaintiff and require her to ignore other responsibilities such as what else was going on around her including the flow of traffic.
In my view the defendant was paying attention and it was not reasonable for her to have expected the plaintiff, who apparently gave no adverse signs, to step onto the roadway when he did or otherwise alter the manner of her driving just in case he did.
In her defence the defendant set up a case for contributory negligence. In view of my findings such matters do not arise for further consideration.

Conclusion

The plaintiff has not satisfied me on the case as pleaded and as advanced at trial and must therefore fail. There will be judgment for the defendant.